1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 NOEL V. LATORRE, Case No. 4:22-cv-02922-YGR Plaintiff, 7 SECOND ORDER TO SHOW CAUSE RE: 8 v. ARTICLE III STANDING

9 EXPERIAN INFORMATION SOLUTIONS, INC., ET AL., 10 Defendants.

11 TO PLAINTIFF NOEL V. LATORRE AND PLAINTIFF’S COUNSEL OF RECORD: 12 You are HEREBY ORDERED TO SHOW CAUSE in writing by no later than five (5) 13 business days from the date of this order why this case should not be dismissed for lack of 14 standing. 15 This is the Court’s second order to show cause based upon plaintiff’s standing to sue in 16 federal court. (See Dkt. No. 40.) The Court identified myriad issues concerning Article III 17 standing on October 27, 2022. (Id.) Rather than respond substantively to the order to show cause, 18 plaintiff filed a notice of intent to file a first amended complaint. (Dkt. No. 41.) Plaintiff 19 subsequently filed the First Amended Complaint (“FAC”) on November 28, 2022. (Dkt. No. 44.) 20 Based upon the allegations in the FAC, it appears that plaintiff has failed to plausibly allege 21 standing and any claim to standing is speculative at best. 22 As the Court previously explained, in order for plaintiff to have Article III standing, 23 plaintiff must show that he “(1) suffered an injury in fact, (2) that is fairly traceable to the 24 challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial 25 decision.” Spokeo, Inc. v. Robins,

(2016) (citations omitted). An injury in fact 26 must be “particularized,” and it must be “concrete.”

.1 Relevant here, “Article III 27 1 standing requires a concrete injury even in the context of a statutory violation.” TransUnion LLC, 2 141 S. Ct. at 2205 (citation omitted). Simply put, “an injury in law is not an injury in fact.” Id. at 3 2205. Further, standing cannot be pled in a generic manner, “rather, plaintiffs must demonstrate 4 standing for each claim that they press and for each form of relief that they seek (for example, 5 injunctive relief and damages).” Id. at 2208 (emphasis supplied). 6 Here, plaintiff has alleged various violations of the Fair Credit Reporting Act (“FCRA”), 7

, et seq., against four different defendants. Having closely reviewed the FAC, it 8 appears that plaintiff has failed to plausibly allege a concrete harm to support Article III standing. 9 In short, plaintiff complains that defendants American Express Company and Synchrony Bank 10 have inaccurately scheduled monthly payment amounts on plaintiff’s credit disclosures prepared 11 by defendants Experian Information Solutions, Inc. and Equifax Information Services, LLC. 12 (FAC ¶¶ 7-9.) As alleged, the underlying tradelines are “closed” such that “[p]laintiff’s 13 responsibility is reported as terminated” and “[p]laintiff no longer has an obligation to make 14 scheduled monthly payments[.]” (Id. ¶ 10.) Since “the entire balance is no longer due and 15 [p]laintiff has neither the right nor the obligation to satisfy these debts in monthly installments,” 16 the accounts “should be reported . . . with the monthly payment amount of $0.00.” (Id.) 17 Plaintiff then alleges that this inaccurate reporting “causes [him] damage by reducing [his] 18 opportunities for credit and employment,” and that he “has been unable to obtain credit or credit 19 with favorable credit terms as a result of the [d]efendants’ failures to correct the inaccurate 20 reporting.” (Id. ¶ 21.) Furthermore, plaintiff also alleges that he “has suffered credit and 21 emotional damages,” including “undue stress and anxiety which resulted in physical harms of 22 headaches, loss of sleep, nausea, anger, and fighting with his spouse due to [d]efendants’ failure to 23 correct the errors in his file or improve his financial situation by obtaining new or more favorable 24

25 intangible harm[s] traditionally recognized as providing a basis for a lawsuit in American courts.” TransUnion LLC v. Ramirez,

(2021). Intangible harms must satisfy the 26 “close relationship” analysis, in which the “inquiry [is] whether plaintiffs have identified a close historical or common-law analogue for their asserted injury.”

. “Those include, for 27 example, reputational harms, disclosure of private information, intrusion upon seclusion . . . [and] 1 credit terms as a result of [d]efendants’ violations of the FCRA.” (Id. ¶¶ 21-22.) 2 Plaintiff’s shot-gun allegations of injury are conclusory and speculative. While plaintiff’s 3 allegations suggest that he “has been unable to obtain credit or credit with favorable credit terms,” 4 he does not allege how based upon the specific defendants’ conduct. There are no allegations of 5 dissemination to third-party creditors or employers to support the conclusory and blanket 6 assertion. Additionally, without more, “allegations of possible future injury are not sufficient” to 7 establish standing. Clapper v. Amnesty Int’l USA,

(2013). Instead, plaintiff 8 must allege facts showing that “the exposure to the risk of future harm itself causes a separate 9 concrete harm.” TransUnion,

. 10 The Court notes that plaintiff did amend his allegations to suggest more emotional harm, 11 including disputes with his spouse. As the Court previously explained, physical and emotional 12 harms may confer standing. See TransUnion,

n.7 (“[A] plaintiff’s knowledge 13 that he or she is exposed to a risk of future physical, monetary, or reputational harm could cause 14 its own current emotional or psychological harm.”). Nevertheless, plaintiff must allege sufficient 15 facts to make it plausible that he did suffer the type of injury he claims would entitle him to relief. 16 See Ashcroft v. Iqbal,

(2009) (“[t]hreadbare recitals of the elements of a cause 17 of action, supported by mere conclusory [allegations], do not suffice.”); Maddox v. Bank of N.Y. 18 Mellon Trust Co., N.A.,

(2d Cir. 2021) (finding no standing premised on 19 emotional harm where plausible facts were missing). It is not clear that disputes with a spouse 20 would satisfy the concrete harm requirement or that there is any plausible connection between the 21 defendants’ particular conduct and those purported spousal disputes. As the Court previously 22 advised, the conclusory allegations in the complaint, which lump all defendants together without 23 distinction, fail to satisfy plaintiff’s pleading obligations. 24 In light of the foregoing, it appears that plaintiff has not cured the FAC to sufficiently 25 alleged Article III standing.2 26 2 The Court notes that defendant Equifax Information Services, LLC filed a motion to 27 dismiss the FAC. (Dkt. 47.) In response, plaintiff opposed but realized that the FAC lacked a 1 The Court therefore provides plaintiff with two options. First, plaintiff may respond to this 2 || order to show cause and: 3 1. Address what his concrete harm is to satisfy Spokeo and TransUnion and where 4 those allegations exist in the FAC as to his claims asserted; and 5 2. Provide any authority or basis for plaintiff to assert standing for the claims and 6 relief that he asserts under the FCRA as currently pled. 7 The response shall not exceed six (6) pages. To the extent the plaintiff proceeds to file a written 8 || response to the order to show cause, defendants shall file any response no later than five (5) 9 || business days after plaintiff's response. Defendants’ response shall not exceed four (4) pages. 10 Alternatively, plaintiff may file a request for voluntary dismissal within five (5) business 11 days indicating that he wishes to proceed with his suit in state court where he will not be subject to 12 || the requirements of Article III. 5 13 Failure to timely reply to this order to show cause will be construed as a concession that 14 || plaintiff lacks standing, and the case will be dismissed without prejudice and without further 3 15 notice. Counsel is reminded of Rule 11 obligations. a 16 IT Is SO ORDERED. 3 17 Dated: January 3, 2023 Jppeat Respctilfftccs, VONNE GONZALEZ KOGERS 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 nothing to address the standing issues referenced herein. Briefing on that motion is stayed 2g || pending resolution of this issue. The hearing on the motion to dismiss is VACATED and will be reset if necessary.